Lawyers Concerned for Lawyers

Granted, as a morning person and a creature of spring & summer, I’m biased. That being said, between the sun, the bluebird skies, and the temperature, it doesn’t get much better than this morning in Vermont.

Speaking of spring and summer . . .

. . . oh wait, before I go on: happy birthday Ben Traverse! Ben has long contributed to others’ wellness, including mine. He was one of the earliest supporters of this blog, has a stellar record of providing pro bono services to clients unable to afford legal services, and, via his leadership role with the Young Lawyers Division, has served the past several years on the VBA’s Board of Managers. If you know him, check in with him today to wish him well.

Speaking of checking in, back to our regularly scheduled blog.

If you’re at all like me, you associate spring and summer with an improved mood & outlook on life. ‘specially ’round these parts, winter is long & dreary. So, as you enjoy a coffee on your porch with the only sounds being those of the birds, and as you revel in rolling the recycle bin to the curb without having to drag it thru slush, a morning like today’s lifts the spirits. Spring, summer, and all the good that comes with each are finally here.

But not everyone feels the same.

Like Ben Traverse, Andrew Manitsky sits on the VBA Board of Managers and has long-supported this blog and the profession’s larger efforts on attorney wellness. He’s a member of a PRB hearing panel and gets his wellness on by playing in a band. Last weekend, Andrew sent me this opinion piece that ran in the New York Times.

Warning: it is a heavy read.

But it raises an important point: for some, spring is a time of despair. Here’s the opening paragraph:

“It’s a popular and perhaps dangerous belief, reinforced by that inescapable Christmas classic “It’s a Wonderful Life,” that winter is the peak season for suicide. Yet experts have known since the late 1800s that it’s not true: More people take their own lives in the spring months than in other times of the year. No definitive explanations have emerged for why this is so.”

From there, the author shares a moving personal story. Then, concludes with a tip that all of us should consider. Referring to spring, she writes:

“It brings new pleasures by the week — asparagus in the farmers’ market, excitable toddlers in the playgrounds — and also a reminder to try to reach out to people who have lost someone recently, or those who seem withdrawn. They may need to be given a chance to talk about how they’re doing, and if things are very bad, encouraged to get the professional support they need. I can confirm that with time, help and love, things get better.”

Back to my original thoughts.

Speaking of spring and of checking in with someone, odds are that you know or work with an attorney who, if not struggling with significant behavioral health issues, is on the path towards the full-on struggle. An attorney who has started to withdraw.

Reach out, check in. As the author points out, sometimes that’s all it takes to make a difference for someone.

And, as regular readers of this blog know, I’m a big believer that we can make a difference, one person at a time.

My first post on lawyer wellness appeared just over three years ago. Since then, I’ve posted almost 40 more.** There have been many others in which I mentioned the topic without focusing an entire post on it.

When my brother and I were kids, we didn’t control the music in the house. Our mom did. One group that received a lot of air time: The Carpenters.

Yes, I’ve posted a ton on attorney wellness. Yes, this winter, the Vermont Commission on the Well-Being of the Legal Profession released its State Action Plan. Comparatively, we are ahead of the curve in addressing attorney wellness.

Yet, today, I’m reminded of the title of a song by The Carpenters. In our house, I’m fairly certain the song was played until the 8-track wore out: We’ve Only Just Begun.

Here’s what reminded me of the song.

Last November, Above The Law posted Burnout, Flame Out, Or Timeout?The post was spurred by the fact that a lawyer named Paul Rawlinson had “taken a leave of absence to recover from the sheer exhaustion of running the second-largest law firm in the world.” In the post, author James Goodnow pitched an argument I’ve often made, albeit in a way much more eloquently than I. He wrote:

“If the classic answer to the increasing demands of the legal marketplace has been to get tougher, let me once again advocate for a new approach: getting ‘realer.’ We need to let go of the outdated concept of the inhuman, never-tired, always-working hero attorney and replace it with the vision of actual human beings, because that’s what we all are. We’re people, with physical and mental limitations, lives and families outside of work, and interests beyond briefing, drafting, and billing hours. We need to take better care of one another, at all levels, and take better care of ourselves.”

Flash forward to very sad news. Paul Rawlinson, the attorney who took the leave of absence? He died last Friday. Above The Law reported on his passing.

Rawlinson’s death crystallized a thought that’s been nagging me since the State Action Plan issued: we’ve only just begun.

Have we raised awareness? Yes we have, and it’s a damned good thing that we have.

But it’s not enough.

The work continues. As Goodnow argued, we must get “realer.” And, every one of us has a role to play in making the profession healthier and more hospitable to its members. Whether volunteering with the Vermont Lawyers Assistance Program, asking your firm to consider the ABA Pledge to Focus on Well-Being, not being a jerk to adversaries, taking a VBA CLE on mindfulness, or simply taking off one more afternoon this summer than you did last, we all have a role.

It will not suffice if, a few years from now, someone finds the State Action Plan and muses “I wonder what ever became of this.”

Indeed, what better time than now? It finally looks and feels a bit like spring, a season of of renewal. Today is a perfect day to renew, or at least to seed, a committment to well-being.

Not sure how? Don’t worry! A great place to start is with the ABA Well-Being Toolkit. It’s chock full o’ good stuff. For instance, consider this from the Toolkit:

“We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

It goes on:

This means that, if we truly desire to improve wellbeing, we can’t focus only on individual strategies like making lawyers more resilient to stress; it is equally important (if not more so) to focus on systemically improving our professional cultures to prevent problems from developing to begin with. We are interdependent in that our organizational and institutional cultures—to which we all contribute and which, in turn, shape us all—have a huge impact on our individual well-being. When our cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations.”

Finally, and consistent with the theme that we’ve only just begun:

This Toolkit is designed to help lawyers and legal employers improve well-being holistically and systemically. This goal will require new choices, considerable effort, and changes that likely will upset the status quo. Positive change agents might meet
with resistance—including complaints that there is no room, time, resources, or need for change. This Toolkit offers reasons for prioritizing lawyer well-being
as well as information, strategies, and resources for implementing a plan for positive change.”

We’ve only just begun. Will there be Rainy Days and Mondays? Hell yes. Lots of them. But, each small step towards a healthier profession brings us closer to the feeling of being on Top of The World.

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness. The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.” You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem. That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different. To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being. As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry. I’m all about mixing business with pleasure, so we also chatted about basketball. Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament. Tip-off is at 2:00 PM in Hartford, CT.

The attorney told me that she’s going. She’s taking her son. When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.” But, then, the attorney said to herself “yes, I can. This is exactly why I work for myself.”

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

I usually use the intro to the quiz to share a memory triggered by the week’s number.

Not today.

The staggering rates at which lawyers suffer from behavioral health issues have the profession at a crossroads. To borrow a phrase, we are Under Pressure. More precisely, the pressures on lawyers are not only driving lawyers from the profession, they’re killing lawyers.

Available data suggests that approximately 500 of Vermont’s licensed, employed lawyers are problem drinkers. At least as many have likely suffered from problem anxiety or problem depression within the past year.

I know, for a fact, that in the past 3 years, as many of Vermont’s licensed, employed lawyers have had their law licenses transferred to disability inactive status as did in the preceding 15 years.

I know, for a fact, that at least 5 of Vermont’s licensed, employed lawyers have taken their own lives since 2014. I also know, for a fact, that at least 1 other died of alcohol abuse.

I wasn’t exaggerating when I said that we’re killing ourselves.

What’s this got to do with ethics? Pretty much everything.

The first of the Rules of Professional Conduct requires lawyers to provide clients with competent representation. Here’s a quote from last summer’s report of the National Task Force on Lawyer Well-Being:

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basiccompetence.” (emphasis added).

Last week’s quiz referenced James Valente’s fantastically competent rendition of the minutes of the Windham County Bar Association’s 2018 Annual Meeting sung to the tune of Queen’s Bohemian Rhapsody. Quite cleverly, a team of lawyers submitted answers to the quiz using the team name Under Pressure.

(For those of you who don’t know, Under Pressure is a song by Queen and David Bowie. The official video is here. The version with the Freddie I remember is here.)

Last night, reflecting on what to post today, I listened to music. As I navigated my Amazon Music app, I stumbled across “Top Songs in Prime.” Scrolling thru, there, at #88, was Under Pressure. I’d have listened anyway, because I love the song. Still, seeing the title made me think of last week’s quiz.

I like to sing along when I listen to music. And I like to be right. Exactly right. So, despite having listened (and sung along) to Under Pressure countless times in my life, I Googled the lyrics.

Until last night, I’d listened, but never heard. The lyrics almost perfectly describe the pressures that the legal profession is facing.

For example:

It’s the terror of knowingWhat the world is aboutWatching some good friendsScreaming ‘Let me out’

That’s what 5 suicides are.

Next:

Turned away from it all like a blind man.Sat on a fence, but it don’t work.

That’s what we’ve done for years. Ignored the problem. Sat on the fence.

Neither works. Neither helps.

Here’s the part that most struck me:

‘Cause love’s such an old-fashioned word,And love dares you to care for the people on the edge of the night,And love dares you to change our way of caring about ourselves.This is our last dance.This is our last dance.This is ourselves.

The Vermont Commission on the Well-Being of the Legal Profession recently released its State Action Plan. Please read it.

It’s time to fund a Lawyers Assistance Program.

I dare you to care for the lawyers who are on the edge of the night. The lawyers who, due to the stigma we’ve imposed, are too afraid to ask for help. If you don’t think the stigma is real, read this.

I dare you to change the way we think about caring about ourselves as a profession.

I dare you to love your fellow lawyers.

Our response the State Action Plan presents a chance to help to relieve the pressure.

We have to take the chance. Because the problem? This is ourselves. And, absent action, this opportunity to act might be our last dance.

Under pressure.

Onto the quiz.

Rules

None. Open book, open search engine, text/phone/email-a-friend.

Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)

Unless stated otherwise, the Vermont Rules of Professional Conduct apply

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

In Vermont, if a prospective client meets with but does not retain a lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client, but another duty is not.

Which duty?

Question 2

There’s a rule that prohibits “qualitative comparisons” that cannot be factually substantiated. A disciplinary prosecution under the rule is most likely to involve:

A. a frivolous pleading

B. a statement made during closing argument in a jury trial

C. extrajudicial statements made to the press that are likely to prejudice an adjudicative proceeding

D. attorney advertising

Question 3

With respect to the Rules of Professional Conduct, the phrase “acting through its duly authorized constituents” is in the rule on:

A. the duties when representing an organization

B. lawyers holding public office

C. firm names & letterhead

D. the unauthorized practice of law

Question 4

Here are 2 things I mentioned at CLE:

last minute changes to wire instructions;

a prospective out of state client who claims to be owed money by a Vermonter, and who only communicates with you by e-mail

What topic was I discussing?

Question 5 (Fill in the blank)

I often blog about Rule 1.1’s duty of competence.

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers. Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars. Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being. That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers. Relevant to my job as bar counsel, the national report noted:

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Again, Vermont’s state action plan is here. When you have time, give it a read. Here’s the concluding paragraph from the introduction:

“Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100% We cannot neglect the issue. As a profession, we must follow-up on the action items. We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow. Great ideas. I wonder what ever became of them?”

Usually I use this column to highlight lawyers doing nonlawyerly things.

Sadly, suicide is becoming a lawyerly thing to do. As we know, over the past 4 years, at least 5 Vermont attorneys have taken their own lives. I know a sixth whose death technically was not a suicide. But it was.

We must continue to work to make the profession a healthier place.

Ten years ago today, Joanna Litt married Gabe MacConaill. Gabe was an attorney. He’s not here to celebrate his anniversary. He took his own life last month.

A few days ago, The American Lawyer published a letter from Joanna. It’s here. The Tax Prof Blog has it for free here. Reporting on the letter, Above The Law has Jill Switzer’s post on how lawyer suicides are becoming too frequent.

Joanna’s letter is heartbreaking. It should make us double our resolve to destigmatize a lawyer’s decision to admit that he or she needs help.

Sometime in the next few months, the Vermont Commission on the Well Being of the Legal Profession will issue a state action plan. I expect that the plan will reference, if not incorporate, aspects of the ABA’s mission to convince legal employers to pledge to commit to a healthier work environment. My post on the pledge is here.

Consider the pledge.

In the meantime, odds are that many of us know a lawyer who is fighting the fight that Gabe fought. Let’s do what we can to encourage that lawyer to seek help.

So that his or her Joanna doesn’t have to write a letter.

Free, confidential services are available 24/7 for people in suicidal crisis or emotional distress and for those around them. The National Suicide Prevention Lifeline is at 1-800-273-TALK (8255). A crisis text line is at 741-741.

My blog on how superstitious I am about the Red Sox is here. Last week, Suzanne Lewis, a very good friend who I met in law school texted from Fishers, Indiana. Fishers is the mid-west headquarters of Ethical Grounds. Friday, the opening night of the Sox-Yanks series, Suz texted “Go Sox!” to me, her husband, and their son (my godson Sammy) along with a picture of a Neil Diamond album cover (The Sox play Neil’s Sweet Caroline over the loudspeakers in the middle of every 8th inning at Fenway.)

Upon receiving the text, my superstition gene went into overdrive.

I didn’t reply. That would have been bad luck. But, the next morning, after the Sox had hung on to win Friday night’s game, I texted Suz that superstition dictated that I make the picture my lock screen. So I did. And then Monday night & last night happened.

Around these parts, summer is an opportune time to work on wellness and work-life balance. At least for me. I’m not a winter guy.

But that’s no excuse not to make wellness a habit that carries into winter! I vow to try. And, in that spirit, I’d like to use this column to call attention to lawyers who are doing the same.

This week’s focus – the lawyers who ran in Sunday’s RunVermont Island Vines 10K. I spotted at least 5. It was great to see them out there!

Let me know what your non-lawerly, non-work thing is to re-charge. Whether it’s running, reading, hiking, knitting, fly-fishing, jamming on a guitar – whatever helps make you well – let me know. If I can, I’ll show up, join you, and post it here (with your informed consent, of course. after all, this is an ethics blog.)

Anyhow, I’m already looking forward to who I might see Friday morning at the VBA Meeting in Manchester. Both at the run/walk that Jennifer Emens-Butler has organized and yoga with Samara Anderson. Thank you Jennifer and Samara for encouraging lawyers to make wellness a habit!

And speaking of Jennifer – she writes a column in every issue of the VBA Journal. It’s called “Pursuits of Happiness.” In it, she shares stories of lawyers who are doing fantastically intriguing & interesting things that have nothing to do with the law. Happy things. That help make and keep them well. Check out the column. Or better yet, let Jennifer know about your own pursuit(s) of happiness!